Using Neuroscience in a Juvenile Criminal Case

Vol. 4,No. 1

Bethany Shechtel

Bethany Shechtel recently graduated summa cum laude from the University of the District of Columbia School of Law. She is currently awaiting bar examination results from the Maryland July 2014 examination. She works with her father in his firm in Rockville, MD, and may be reached at Bethany@Shechtel.com.

A 17 year old is arrested at school for possession of 100 grams of cocaine. The student faces an enhancement for possession in a school zone. Under federal law, a juvenile accused of the sale of controlled substances may be tried in adult federal court. A 10-year sentence may be imposed. Should neuroscience and related studies play a role in determining jurisdiction and sentencing in this case?

What Is Neuroscience?

Neuroimages are structural and functional images of the brain and can be shown as a computerized tomography (CT scan), magnetic resonance imaging (MRI), or a positron emission tomography (PET) scan. A CT scan and MRI scan will produce images of the soft tissue structure of the brain, whereas a PET scan will identify differences in metabolic rates and relative changes in the physiological state of the brain.

The ideal study to show cognitive brain function is through both functional and structural scans, known as a functional MRI (fMRI). An fMRI measures changes in blood oxygenation and superimposes images on a MRI image, showing the structure and activity of the brain in a three-dimensional view. The image that is shown provides insight to the capacity of the person being evaluated and can be used when addressing culpability. The fMRI is noninvasive to the patient and can show how brain limitations may be associated to decision making in the patient, such as immature behavior.

The neuroimage, when combined with psychological studies, is the best method for identifying and obtaining information as to how a juvenile develops and is what you should offer as evidence in trial. By using both neuroscience and psychological testing, the “hard science” base is meshed with a “soft science” argument, reinforcing the idea that juveniles are different from adults in not only responsibility, but also their potential for rehabilitation.

Why Is This Science Important?

The frontal lobes are the last part of a juvenile brain to mature. An adult will use the frontal lobe for planning and judgment, where a juvenile will use the amygdala. The amygdala works off of gut reactions and fear, which explains why teenagers, with high dopamine levels, lack the capacity to control impulses, resist peer pressure, and appreciate risk.

The dorsolateral and ventromedial regions of the prefrontal cortex also do not completely mature until later in adolescence. The prefrontal cortex controls sociomoral reasoning. The prefrontal cortex controls higher order functions and the ability to recognize delayed rewards over immediate ones.

The brain also goes through a maturation process of synaptic pruning and myelination, which strengthens the ability to self-regulate and ignore the reward impulse. Myelination is the disposal of a layer of fatty tissue around nerve fibers, which provides insulation to transmit electrical signals between neutrons. The increase in the speed of the neutrons allows for different brain regions to integrate functioning and information processing. Pruning, shown through an MRI, is important because humans have too many neurons before puberty and, as the brain matures, the lesser-used neural connections shrivel away, causing the ones that are being used more to become more efficient.

The visual result of myelination is that white matter increases, and the pruning decreases gray matter. The gray and white matter, the structural connectivity, shows neurotransmission. The process of increasing white matter and decreasing gray matter continues into early adulthood, furthering the conclusion that brain development continues into adulthood.

How Can I Use This in Practice?

Scientists have looked to genetics, phrenology, psychoanalysis, sociology, and economics to explain criminal behavior and the likelihood to commit crime. As science develops, the shift will turn to neuroscience to analyze the criminal mind. The science can be used to demonstrate that juveniles, due to psychological and neurological limitations, are not able to fully participate in the justice process and are less able to consent to searches, enter into pleas, or assist in their only defense.

Using neuroscience as evidence can explain the biological processes of human behavior and the lack of responsibility and maturity in a juvenile. It is important to note, however, that the neuroimaging data does not overextend claims and will not go to a person’s guilt, as it only shows brain growth. To use the neuroimaging data to interpret guilt, the immaturity in the brain can show culpability, showing the offender acted on an impulse or without self-control.

To demonstrate the level of functioning in a juvenile, you will want to obtain: a neuropsychological evaluation, all records (medical, psychological, psychiatric, and academic), and a clinical MRI scan. The comprehensive neuropsychological evaluation should be both objective and projective and summarized in a report and compared to school records as well as potential areas of dysfunction and behaviors that have deteriorated. The medical, psychological, psychiatric, and academic records should be reviewed for previous emotional trauma as well as possible reduced school performance or attendance that can demonstrate your client’s inability to evaluate circumstances. The clinical MRI scan can evaluate the brain for a structural abnormality. The expert selected must demonstrate the connection between the brain imaging technology and the capacity of the juvenile client.

Your expert witness can and should testify to establish the juvenile’s inability to recognize the wrongfulness of their conduct. The expert is to testify about the operation of the brain and its capacity and is necessary to support the argument that juveniles are immature in judgment and decision-making. This goes towards blameworthiness. An expert should be prepared to testify as to the function of the brain in relation to cognitive awareness, and should be prepared for cross-examination.

The inclusion of brain imaging allows for the judge or jury to assess the ability of the juvenile to make decisions and to evaluate the juvenile's criminal culpability. This information can be disseminated to the fact-finder through expert witness testimony and should establish the juvenile's inability to appreciate the wrongfulness of their conduct. The juvenile attorney should offer brain imaging data to establish how their client’s diminished capacity reflects their lack of maturity and decision-making processes.

Conclusion

As stated by the Honorable Judge Johnson (Circuit Court for Montgomery County, Maryland) “This is not junk science.” The brain study is a useful tool to demonstrate that the juveniles’ cognitive maturity level may be below the juveniles’ chronological age. As a juvenile attorney, you are the link between your client and the court and are often times the only advocate your client has. Using these brain studies in trial is necessary to defend your juvenile clients, especially for older children who are more likely to be treated as adults and transferred to the criminal system.